🚧 Training, content and container of Compliance

I- THE CONTENT: COMPLIANCE TRAINING PRINCIPLES

We remain eternal students and trainings are liike a travel in time offered by the firm, a mean to find back this happy time of scholarship, of comrades, of youth. Beyond this meeting moment, what can we expect from it?

It is the first question to ask because training being itself a Compliance Law's tool, as every Compliance mechanism it takes  its principle in the goal pursued. Before all, it is necessary to determine the purpose of a Compliance training (A). Once this is determined, the elements from which trainings are built appear more easily (B).  

A. COMPLIANCE TRAINING'S PURPOSE 

Let's not take the general purposes of what is training, that is the education of the individual, its institution as citizen, its insertion in concentric circles group!footnote-1841, its access to knowledge of theoretical principles and to practical way of doing, because it is necessary to analyze the specific training to Compliance while its goals evoked just above are all pedagogical, which are present in Compliance teachings as in any other teaching, and will be not developed here. 

We always need to keep in mind that trainings on Compliances are themselves a part of Compliance Law in which they have for aim to help the firm reach "monumental goals" (1), to reinforce the institutional interlinking of Compliance Law (2) and to establish into the firm a probatory culture through which the company find its place in Compliance Law (3).

1. Helping the firm reach "monumental goals", principles of Compliance Law

Compliance Law assigns "monumental goals" to  the firm , for instance contributing to the fight against money laundering, or against corruption, or for the proactive protection of Nature.

With an appropriate training, under the control of the Supervision authority, the firm should  prove that it contributes effectively to it. It will do it through a technical learning that will permit the concretization of the goals. This implies a variety of trainings according to these goals. 

When the goals imply the active participation of each person in the firm, either negatively (for instance, "do not corrupt") or positively (for instance "inform an intern or extern authority of a case of harassment"), it is needed that the training should be of a behavioral kind: each person in the firm should be put in situation, through cases in order to learn to get the right reflexes. If they are only mechanical reflexes, the learning might be simply mechanical, a computer being a good tool. If it requires an appreciation of the situation (for example if the victim asks to not being protected), the learning should then be more collective and discussed. 

If the goals fall under the managers' decision making power, training changes itself because they are monumental goals themselves which should be instilled under the form of direct discussion with them, since they do not have nor the time nor the need to enter into the mastering of so much various regulations but that they should, on one hand, mastering what for their firm is constraint, even conduct it via the "raison d'être"  and the corporate social responsibility toward these same goals if they estimate that it is also in its interest (for example to fight against corruption or to lead active campaign for equality or the protection of oceans).

This mastering of goals by the comprehension that leaders have of it permits moreover to them to be "exemplar" ("from the top"), which links the two types of training (training of leaders and training for all): the speech of leaders on the "raison d'être" of Compliance becomes thus an element of training for everyone in the technical use of regulation, better enlightened by the understanding and the adhesion to the goals. 

Moreover, this training for the firm is not necessarily locked up in the firm: it should be inserted in the interlinking constituted by Compliance Law, which is therefore reinforced.

2. Reinforcing the interlinking on which is leaning Compliance Law

Monumental goals are not elaborated by the company but by public authorities, which target to eliminate corruption, money laundering, preserve the entire world from banking, financial, climate and sanitary crisis, to obtain protection of vulnerable human beings through the effectivity of their fundamental rights.

The firm is an instrument of its effectivity, under the control of a public supervisor, and its adhesion, potential and desirable, to such goals, is not a required condition.

It remains that the well-done internalization of these goals and the efficiency of the means implemented, for example the whistleblowing!footnote-1842 or risk mapping!footnote-1843 mechanisms, is still more "effective" if this internalization leads to what we could name an "impregnation". 

This impregnation operates through training, and it is the reason why sanctions, most often of an Ex Post nature, integrate in Compliance Law the most possible this Ex Ante function that is training!footnote-1844, because we always train for the future.

Since then trainings are especially well conceived for they insert the firm, as a set of people and articulation of various jobs, in the institutional and geographical  system on which Compliance Law leans himself!footnote-1845: interlinking , in the institutional interlinking between judges, prosecutors, regulation and supervision authorities, professionals of the control chain (auditor, attorney, etc., investors, consumers) an the geographical interlinking between local, national, European, Western world and other zones. 

Trainings can, through people's interventions, belong to this different meshes, make the firm more integrated to the interlinking on which leans the effectivity of Compliance Law, on which everything leans.

As such, the more the speakers will be diverse and distant, the more the training will be instructive for people: for example a discussion with someone in favor of FCPA having an active role in the application of it and an attorney advising the firm in a process of deferred-prosecution agreement with the French public procesutor. Because in an Ex Ante perspective, it is needed to learn how to behave adequately in the future and it is very useful to see different persons in different places.

3. Establishing a probatory culture through which the company find its place in Compliance Law

If it is true that Compliance Law, as Regulation Law, is situated in Ex Ante!footnote-1846, Compliance Law supposes that the firm proves permanently that it is structured in such a way that the goals set by public authorities are concretized and that people whose it is responsible have the appropriate behaviors in this sense.

The permanence of this obligation, always active, transcends the opposition between Ex Ante and Ex Post. This obligation to continuously taking into account is often designed with the specific term "accountability"!footnote-1847,  which designate thereby an "active duty" more than a classical liability. Moreover, in order for this active duty lo have a legal value, it is punished legally, and in strong manner that we know since, thanks to Criminal Law (which is an Ex Post Law), the legal system ensure that, cumulating it with Repressive Administrative Law, until constitutional courts set some limits.

It results from it an obligation of a radically new nature for firms: the probatory obligation.

Indeed, the firm must continuously prove that it implemented everything through its organization (structural obligation) and through everyone (behavioral obligation) to reach these monumental goals. If the fact that these goals are reached is only a mean obligation, on the contrary implementing structures and obtaining behaviors that tend to it is a result obligation!footnote-1848.

As far as it is relatively easy to prove that the structures have been implemented (for example the platforms of whistleblowing, even that trainings occured) it is harder to prove that they have been effective... However, "proving" is not only furnishing calendars of teachings and the proof of booked rooms, it is also proving that this training has produced its effect...

We understand that Regulators, which are keepers not of dead letter of the texts but of the effectivity of the system, ask that trainings pay off. But we also understand that companies which transmit invoices without obtaining the satisfecit of regulators do not know what to do anymore...

Firstly, to solve this, training should itself includ the proof of the effective people's follow-up (what could be numerically operated). Secondly, training should integrate as teachers people who are themselves in control authorities ; supervision penetrating thus more and more the firm.

Thirdly and in an essential way, training should itself have for aim to instill, in each person for which the firm is responsible, a "probatory culture". This means that in the simulated accomplishment during the training of such or such behavior (for example the opening of a bank account for a moral person whom it is necessary to control the identity!footnote-1849 or in the detection and the management of a potential conflict of interests), the person should learn to keep track of its approach. Indeed, if later the regulator, the prosecutor or the court demands accountability to the firm, it will not be on the finally made decision but on the good behavior which would have led to it. But it is to the firm to prove the existence of this good behavior, and the person should have kept the proof of its Compliance approach (for example a call to a third person, in particular to a Compliance officer).

This culture of proof preconstitution that training can instill is essential to protect the firm. It is specific to Compliance Law, in which Compliance Law even if it is an Ex Ante Law virtually puts the firm already face to its judge, integrating the due diligence proof preconstitution culture in everyone's daily life.

B. THE COMPLIANCE TRAININGS' ESSENTIAL ELEMENTS  

If the specific purposes of Compliance Law for which trainings should be led are clear, the elements which preside to their organization result from it. So, to determine who should prescribe them (1), who should be trained (2), who should train (3), what should we transmit (4) and how to train (5). This should lead to the measure of the result of so much effort (6).

1. Compliance trainings' prescribers

Because Compliance training is a full part of Compliance Law, texts, in a more or less "soft" way, often ask training about that. In more singular cases and with a more imperative mode, compliance programs imposed by sanctions or spontaneously taken, integrate training commitments. 

As by prophylaxis, in the U.S. the Department of Justice and the SEC strongly suggest that companies learn the Compliance constraints, especially by trainings. In a similar way the Agence française anticorruption -AFA (French Anticorruption Agency) targets training as an essential elements for an efficient fight against corruption. 

It is so a convergence between public authorities, and firms which targets the principle of a teaching and sometimes detail the trainings' dimension and the targeted public in the firm.

2. People trained to Compliance

We have until now reasoned as if training was integrated into the firm because it is analyzed as a "Compliance tool" and because it is in such a framework that it makes sense. Because they are continuous training, adressed to people who work and have little time and who have already been confronted with Compliance issues, rather under the perspective of difficulties, for example through controls, or even sanctions!footnote-1882, it is most often people who are the most "exposed" to Compliance in the company, that is to the Ex Post of Compliance.

We are thus confronted to a paradox: while Compliance Law is characterized by its Ex Ante nature, the natural tendancy is to teach it to people who are the most sensitive to sanction, which often leads to focus training on sanctions, for example the French law called "Sapin 2" and the repressive part of it, which is the aim of countless trainings, while teachings corresponding more to the Ex Ante spirit of Compliance, as consumer information or environment protection, are far less numerous. 

Thereby, by a shock return, the way Compliance Law is taught, before all through Criminal Law, through continuously told cases, most often dramatically (BNP or Alstom cases)  influences the evolution of Compliance Law itself, maintained in what could however be its own failure: sanctions. 

Otherwise, we have been observing for the last few years, in many countries, in many universities, even in business schools, the implementation of masters or university degrees of "Compliance". They are rattached to the mother-discipline which is Law, Management, Economics and often mention in their title "Ethics" (which does not exist as a mother-discipline in higher education structures).

Therefore, it is students who choose in their "initial" training to learn what is Compliance. Their aim is perhaps to become scholars but above all to find a job in a sector where supply is abundant. 

We observe that the goal of training is not the same because it is about getting a technical mastering of the matter, without any doubt in order to becoming Compliance Officer, and thus expert.

But Compliance Law is only emerging!footnote-1850. It just begins to constitute an autonomous branch of Law, going beyond Criminal Law and novelties observed in Competition Law, Corporate Law, Personal Data Law. This emerging state makes it for the moment difficult to be perceived and even more difficult to be restituted and therefore to be taught, because Compliance Law is not the addition of all of these "sectoral Compliance Laws"!footnote-1852.

It results from it that its teaching is, for the time being, in some way "blocked" in "more prestigious branches of Law" than itself, either Criminal Law, privileged for reasons seen before and depending to the kind of people attending trainings, or Corporate Law, etc. The way Compliance is taught is paradoxically a brake to the constitution of the discipline because it results from it that everybody thinks that he or she practices it as a whole while only a part of the pertinent rules have been taught.

Let's take an example: people in charge of protecting personal data in firms will learn the entire GDPR and will estimate having been trained to all Compliance Law, while people in charge of fighting against money laundering will learn everything about FCPA and will estimate having been trained to all Compliance Law too. The former and the latter will have a certificate, perhaps displaying the same mention attesting the mastering of the matter, while they  will not have learned the same thing ; the DPO knowing nothing about the rules permitting to fight against embargos, while the one who is monitoring international financial flows will not study the legal question of hate speeches in digital space. The use of acronyms in each sector increases this segmentation that training rises instead of reducing it. 

What is a gap with regard to Compliance Law will not be felt as such by people because they do not meet, everyone using obvious bases in their circle, non understandable outside of it. In that, continuous training contributes to what is legitimately denounced: the silo expertise that is Compliance and is aggravating.

The constitution of a Compliance Law which doesn't make do with being only an efficiency method of such and such branch of Law but goes beyond to be able to find a substantial and specific definition, is thus an imperative which is served by training and which not only must adress to everyone in the firm but also invite to a common culture. Training does not only consist in deepening what we already know, which segments Compliance Law and hindrance its constitution as branch of Law. Training does not only consist in teaching sanctions in a critical way, which houses Compliance Law in Ex Post while it is, first of all, Ex Ante.

For that, it is necessary to teach it in a global way to everyone in a continuous training and autonomously in an initial training. For the moment few examples are found. 

3. The teachers

As for Compliance whose we measure the progression each year, training in itself now constitutes a "market". Because training is a part of Compliance, it also constitutes a part of this market. It follows its expansion. Because there is demand, there is therefore supply. It is then logical that everyone say good about training, because everyone could potentially be a teacher. 

Media echo, with delectation: we can for instance read "Le marché mondial des Formations sur la conformité d’entreprise 2020 connaîtra une croissance énorme d’ici 2026" (our translation: Compliance Training world market 2020 will know an enormous expansion until 2026). Gourmandinet!footnote-1866 in Compliance land and everyone see themselves in the role of Compliance teacher. 

This is true because it is needed to benefit from more able people to explain all of this for people who must understand behaviors that they could not have (for instances, pollute or harass) and why they cannot have them (incurred sanctions, the non-legal - for example moral - justifying abstention) as well as behaviors they must have (protecting people's rights, acting for ecological equilibrium, denouncing violations, transmitting information, using efficient legal or non-legal means ).

This means that the most appropriate teachers are not limited to university world, even if the mastering of what we often call the pedagogical ability whose high education teachers, certified by a degree and seasoned by teaching practice, are the most likely to provide a general, clear and simple vision of the discipline. And more a discipline is designated as "complex", qualification which is often used about Compliance..., and more the teacher should be simple in its restitution. 

But this cannot be sufficient. Thus, the auditor is the most able to explain the a priori control of information, while the attorney is the most able to explain the appropriate behaviors in order not to be exposed to sanction processes. 

Moreover, because there is a continuum between Ex Ante and Ex Post, the most appropriate teachers are without any doubt people toward which everyone in the firm can turn about Compliance issues, especially Regulation and Supervision Authorities members, Prosecutors and judges. Not only from the geographical areas from which he or she belongs but from other geographical areas, because the extraterritorial effect of legal Compliance rules is acquired!footnote-1853.

As such, it is necessary to understand American rules, not only because the jet of their mechanism carries everywhere but also because their spirit is now present everywhere, as each commentator of the French law "Sapin 2" underlines it. This is why teachers mastering American Law are so welcome. But it is still important to make understand what is for instance Chinese Compliance Law, probably very different form Western Law. A teacher knowing it could do that. In a discipline which, more than any other, marries culture and letter!footnote-1883 ; this is essential.

4. The subjects taught for Compliance

How it is difficult to know what to teach when we teach Compliance...

Probably some Law, because there are some much laws, decrees, circular orders, guidelines, judgments, contracts, commitments, charts. In this variety of legal acts and facts, corresponding either to hard law or to soft law, we will cross Criminal Law as well as Civil Law, Public Law, Business Law, International Law, Fiscal Law, Corporate Law, Constitutional Law, Administrative Law, Contract Law, Tort Law, Labour Law, Arbitration Law, Human Rights, Criminal Procedure, Administrative Litigation. If we are more modern in the pedagogical segmentation of disciplines, we should teach Process Law, Financial Law, Data Law, Enforcement Law.

But if only there were only Law to teach...

If we admit that Compliance is also a "culture" to instill in order to share it better!footnote-1855, it is then also necessary to teach Finance, Ethics, Management, International Relations, and even Behavioral Sciences (and why not for example Body Language). 

We are therefore confronted to a major difficulty to design Compliance training: should we be in initial training or in continuous training, how can we teach all this? This is even less conceivable in continuous training because people, on one hand, do not have available time for this and in another hand have already acquired knowledge even if its varies according to firms, services and people.

How shall we do it ?

Without any doubt it is necessary to design training which do not pretend to teach everything. It is possible to reinforce the knowledge of targeted people, or, on the contrary, open the door for them (without pretending to expertise) towards Compliance's dimensions that they ignore. It is the reason why there are no subjects imposed: it is necessary to start with analyzing people targeted by the training!footnote-1856 and design the teaching of the chosen subjects with the training prescribers!footnote-1857, choosing consequently in a third time the appropriate kind of teaching.

5. Compliance teaching methods

In the same way, the variety of the available teaching methods permits to adjust them to the public and to the objectives, because there are no training methods superior to others.

Thus, the mechanical methods as e-learning are appropriate and relatively costless to teach the basics and speak as well to a large public and in a particular way, everyone activating as he or she wishes features in the software, while the machine permits to control attendance. This control dear to the hierarchy is often only illusory because it is even more easier to cheat with a machine than a teacher. 

Moroever if the current stake is to share a culture, the machine is without any doubt a poor tool to do it. The control of the effectivity of the culture of Compliance transmission is also hazardous.

Training costs weighing in the total invoice of every Compliance costs, this mechanization training finds its principal interest in a less important invoice, because a robot is never tired and the mechanical voice, softened by technological progress, soon cuddling, will be able to repeat continuously and in multiple languages the rule to remember.

If we consider more seriously what is training with regard to Compliance Law, training being an element of Compliance Law that we would consider seriously. Firstly the exemplarity of Compliance on which we often insist!footnote-1858 implies that there is a training through exemplarity taking the shape of speeches by top managers themselves, from the company (and if it is the case it is a commitment) or from other companies. 

Second, training has vocation to be done quickly and in a segmented way because it is probably not necessary to let people far from practice for too long but it is rather useful to design short and renewed sessions with direct discussions with teachers!footnote-1859. The brief nature of this sessions permits to have high level teachers in responsibility, which is more instructive for people who listen to them, because such teachers have few available time.

6. Compliance Training Measure

Classically, the measure of a training takes the shape of a certification!footnote-1860. The multiplication of masters in many different mother-disciplines!footnote-1861, succeed in this, which give people attending a measure thanks to the certification that is given to them.

Companies, even administrations, now send, in the United States even more than in Europe, their employees in trainings, which soften the distinction between initial and continuous training!footnote-1862.

But diplomas are measures that are more and more controversial, in the sociological, psychological and economical sense. If some say Compliance is before all a question of culture and ethics, it may be true but it is difficult then to praise the power of a diploma in the matter.

The measure of the effective success linked to trainings is without any doubt in the control operated by the Regulator. Because Compliance tools should be "effective" and that this effectivity is controlled by the Regulator itself!footnote-1867, it is then role of the Regulator to control the effectivity and the efficiency of these trainings. The Regulator does it when he punishes the absence of training or their absence of scope. Doing that, he gives the measure, certifying such or such training.

But if training is a Compliance tool among others, this does not mean that there is training only in the obvious sense of the term: in every Compliance tool, the educative dimension emerges. And more and more.

II. THE CONTAINER: THE OTHER COMPLIANCE TOOLS, ELEMENTS OF TRAINING

This educative dimension emerges as well as in risk mapping (A), intern control processes (B) and normative production (C).

A. THE PEDAGOGICAL DIMENSION OF RISK MAPPING, ELEMENT OF COMPLIANCE TRAINING

Risk mapping is often presented as the first Compliance tool!footnote-1868, because in primary condition, it is needed to recognize risks to organize in Ex Ante the different ways to avoid them. It is the reason why the Regulator itself establishes to the benefit of everybody a risk mapping, for example the risk mapping elaborated each year by the Autorité des marchés financiers - AMF (French Financial Regulation Authority)!footnote-1870, in order for operators to pick up pertinent information to then create their own risk mapping!footnote-1869.

The two actors, Regulator and Operator, do not establish a risk mapping for the same reason. The operator establishes it to lead its business and well master its risks, making the right management decisions. The regulator not being a business decision-maker, and the principle rule of distinction between operator and regulator implying it strongly, does not target this when he establishes a risk mapping. He thus has another objective: he wants to enlighten the market and investors in their risk taking. 

One can so say that the Regulator trains but not the operator, who has already a lot of things to do by better establishing this mapping, without lecturing or helping others understand the future world....

But on the contrary, with a kind of reflex effect, when the operator establishes such a mapping, investors inflect their future behaviors, because of the information that it contains!footnote-1871. As case law punishing the operator who has badly operated this mapping shows it, this corresponds to a kind of "right  to third parties to be alerted of the risks".

Mapping is therefore the objective element which can be articulate to the character of the whistleblower. It is the way by which each operator is in charge of educating stakeholders in the use of risks, not in order for them not to take them - because Compliance Law is articulated in a liberal conception of economy - but in order for them to take risks if they want, being informed. 

B. THE PEDAGOGICAL DIMENSION OF INTERN CONTROL PROCESSES, ELEMENT OF COMPLIANCE TRAINING

Control processes are essential concerning Compliance!footnote-1872. They confer a reality to the firm and to the moral person compared to corporate officers and to managers, because they postulate that the firm controls actions which it knows nothing about and which can have been be harmful to it, led by people who structurally express its willingness. 

Schizophrenia touches by nature control processes. In this chess game where the same person plays the black and white pieces, where the leader interrogates and is interrogated, as in burlesque films, where the character does not stop to stand up to go sit in the empty chair in front of him or her, how understand this duplication?

Admitting that doing that the firm educates itself. By constraining itself, especially because the moral person's attorney represented by the corporate officer will not be the same than the attorney of this corporate officer!footnote-1873, the firm is talking to itself. Many people explain that the sole interest of such a heavy Law that is Compliance is to enable people in big companies to speak and get to know each other.

Thus, intern controls often take the path of discussions, explanations, dissipations, misunderstandings,departments which finally come out to talk to other departments!footnote-1874.  

Internal controls can be akin to police investigations or instructions but also, particularly if they cease to be the exception or become more common, are akin to a pedagogy of respect of the law and respect of others through discussion!footnote-1875.

This maieutic training expressed by internal control is due in particular to the fact that many Compliance faults or errors are due to the isolation of the person who caused the violation and that if he or she would have spoken about it then the violation would not have happened.

C. THE PEDAGOGICAL DIMENSION OF NORMATIVE PRODUCTION, ELEMENT OF COMPLIANCE TRAINING

It is often asserted that Compliance must be practiced through example!footnote-1876, and that this example must come "from the top" ; the leader should not only evoke in the most solemn and engaging circumstances the need for Compliance but also show that he complies with it himself: pedagogy by authority ("do it since I am the president"), pedagogical by example ("do it since I do it myself").

The "charters" of companies are now often entitled "code of conduct" and detail the way in which each one must behave. As in a manual, sometimes with drawings to make it easier to understand, the group's holding company explains to everyone, through one or two very simple cases, what to do: through this document the company communicates to the markets, in an educational process aimed at getting everyone to understand why the regulations must be respected. For example to save the oceans or to respect the people with whom we are in contact.

The most remarkable is the approach of the Regulators. They publish books that explain, as well as classroom teachers would do, the rules, sources, cases, examples, issues, etc. In short, the Regulators now give lessons in Compliance.

For instance, the Resource Guide published by the US Department of Justice and the SEC, the subjet is to explain Compliance Law applied to the fight against corruption. By the way, the Prosecution Authority that is the DoJ and the Sanction Authority that is the SEC assert their institutional doctrine, the document also constituting Soft Law.

Gunther Teubner feared that companies would become the new "Constituents" of a globalized world!footnote-1877. By reading such documents we can see that the public authorities, by lecturing us on what is and should be Compliance Law!footnote-1881, repeat once again that they are the masters of it, for it is the same lesson that the company will find in the decision of the Regulator, a sort of copy in which only the Regulator and then the judge have the power to affix the note.

From this final examination of continuing education, no one will be able to exclude companies, because companies are subjects of Compliance Law.

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